Maine Municipal Association 2012 MMA Convention October 4, 2012

Maine Municipal Association2012 ConventionOctober 3rd & 4th, 2012

Presenter: James D. NadeauP.L.S., C.F.M., C.F.S.

Session 1: 8:45-10:00 AMMortgage Loan Inspections vs. Boundary Surveys

Session 2: 1:30-3:00 PMUnderstanding Flood Zones

Session 1: 8:45 10:00 AMMortgage Loan Inspections vs. Boundary Surveys

Differences between MLIs and Boundary SurveysCommon misconceptions about their useBreakdown of a Boundary Survey

MLIs vs. Boundary SurveysWhat they doMortgage Loan InspectionsBoundary SurveysDetermine if dwelling or on-site improvements are in compliance with municipal/local building set back requirements at the time of construction.

Determine if on-site improvements used as loan collateral, horizontally scale in or out of a Special Flood Hazard Area (SHFA), according to FEMAs Flood Insurance Rate Maps (FIRMS).Determine a parcels property lines based on original record documents which created the parcel & abutting parcels.

Show property/lot corners, record rights of way and easements, encroachments, applicable appurtenances, lines of occupation, and area.

MLIs vs. Boundary SurveysHow determinations are madeMortgage Loan InspectionsBoundary SurveysUse the current locus parcel reference

Horizontal scaling of Flood Insurance Rate Maps indicate initial flood risk elevation.

Determine applicable operative deeds of the locus parcel and pertinent abutters, to create a chain of title to determine junior/senior rights, original sequencing, and original called for monumentation. Inspections vs. SurveysDefinitionsfrom Blacks Law Dictionary, 6th editionInspectionSurveysTo examine, scrutinize, investigate, look into, check over, or view for The process by which a parcel of land is measured and MLI Sketch

Theyre called Inspections for a reason

No evidence is shown

No records research performed

Measurements not necessarily performed

Determination is made by provided deed or reference from the title company, Realtor, or lending institution

Boundary Survey

Research to determine order of lot sequence

Identify evidence in operative documents

Perform accurate measurements

Perform precise computations

Document preparationMLIs vs. Boundary SurveysWho should use themMortgage Loan InspectionsBoundary SurveysLenders, title companies, and title insurance companies representing a mortgage transaction, and investors.

NOT for private homeowner use.

NOT for contractor use. Homeowners, business owners, planners, developers, engineers, architects, and other design professionals.MLIs vs. Boundary SurveysHow they are usedMortgage Loan InspectionsBoundary SurveysUsed as tools for understanding and determining loan investment risk.

The title insurer will provide coverage for the lender (not for the homeowner). Findings are not recorded at county registries of deeds. Used to identify property/lot corners

Calculate accurate area for parcel

Create metes and bounds descriptions

Create a Surveyors report

Generate final plans that meet county registry recording requirementsPop Quiz 1:Mortgage Loan Inspection should ONLY be used for these 2 things:

Determine if dwelling (improvements to be used as collateral) was in compliance with municipal setback requirements at the time of construction.

Determine if dwelling is located within a Special Flood Hazard Area, based solely on horizontal scaling, no elevations are used.

Statements often found on a Mortgage Loan Inspection, qualifying the product

Mortgage Loan InspectionsCommon MisconceptionsA Mortgage Loan Inspection has never been called a Class D Survey.

A Class D Survey pertains to Positional Accuracy of Field Measurements.

Also called a plot plan, site plan, mortgage survey.

Closing statement

Mortgage Loan Inspections

MLIs SHOULD NOT be used for:Land Divisions/SubdivisionsLand FeasibilityAcreage CalculationsSite PlansBuilding PermitsMortgage Loan Inspections

MLIs DO NOT identify:Deed overlapsJunior/Senior rightsEasements and Rights of Way not in current deedAny land conveyance not in current deedTypographical errors in current deedEncroachmentsOriginal boundary evidence

POP QUIZ 2!Q: What is the area of a 100' x 200' parcel of land?

POP QUIZ! Answer

Boundary SurveysThe Breakdown

Boundary SurveysPrivate & Public Records ResearchCollect information NOT recorded at the Registry of DeedsMunicipal officesAbuttersOther land surveyorsRegistry of ProbateCounty commissioners officeState agenciesHistorical societiesBoundary SurveysRegistry ResearchPerform chains of title at registry of deedsDetermine: Sequence of conveyanceOriginal called for boundary line or corner evidenceEasements/rights of wayTypographical errorsWorksheet that identifies the various record calls along each boundary line

Original deed used to identify the intent of the original grantor

Evidence found relative to locative information within the deeds

Differing surveyor opinionsBoundary SurveysPreparation of Deed SketchBoundary SurveysChain of Title

Locus Chain of Title for our office1899 - Present: Portland1871 - 1899: Deering1814 - 1871: WestbrookPre 1814: Falmouth

From 1814 1820 Westbrook was part of MassachusettsPrior to 1760 records would be located in York County.Cumberland County was not established until November 1, 1760. Also, both counties were still within the boundaries of Massachusetts until 1820.

Significant Dates in Cumberland County HistoryPortland was part of Falmouth until 1786.Yarmouth was part of North Yarmouth until 1849.Scarborough - July 14, 1658 Falmouth - November 12, 1718 North Yarmouth - 1732 Brunswick - January 26, 1739 Harpswell - January 25, 1758 Cumberland County - November 1, 1760 Lincoln County - November 1, 1760 Windham - June 12, 1762 Gorham - October 30, 1764 Cape Elizabeth - November 1, 1765Deed Sketch

Boundary SurveysField Recon & Instrument LocationUsing the deed sketch, we field locate all applicable boundary evidence, improvements, and lines of occupation (tree lines, fences, stone walls).

Not uncommon to find occupation lines and record lines to be in different locations.

Boundary SurveysData Entry/Office ComputationsReview, validate, and verify data for mathematical accuracy

Can now determine acreage, encroachments, boundary corner locations, easements, rights of way, etc.

Determine deed excess and deficiency

We create our professional opinion

Boundary SurveysPreparation of Final PlanDepicts all rendered services, final findings, and recommendations.

Should hold up to professional scrutiny in a discussion or dispute.

Product is prepared in compliance with State requirements.

Boundary SurveysMark Property CornersReturn to site to mark boundary corners and lines with steel rebar and survey caps.

Provides notice to abutters and future surveyors that the parcel was formally surveyed.

Other monuments can be placed as requested.

Summary of Key PointsMortgage Loan Inspections are only to be used to determine investment risk in mortgage loan transactions.

Any determinations made based on accurate measuring of the land would require a formal land survey.

Permits made for development projects should never be based on an Mortgage Loan Inspection Plan. Mortgage Loan Inspections vs. Boundary SurveysAny Questions?Maine Municipal Association2012 ConventionOctober 3rd & 4th, 2012

Presenter: James D. NadeauP.L.S., C.F.M., C.F.S.

Session 1: 8:45-10:00 AMMortgage Loan Inspections vs. Boundary Surveys

Session 2: 1:30-3:00 PMUnderstanding Flood Zones

Session 2: 1:30 3:00 PMUnderstanding Flood Zones

History and purpose of the National Flood Insurance ProgramCreation of the flood zoneFlood Insurance Rate Maps & their inconsistenciesFlood zone determinations & the appeals processWe will not cover the following topics in great detail:Elevation CertificatesFormal submissionsInsuranceCommunity Rating SystemCreating elevations from flood studiesSubstantial improvement and damageHazard mitigationRegulatory and administrative measures

But we are happy to provide more information at another time.

Evolution of the National Flood Insurance ProgramDuring the early years of flood insurance provided by private industry, rates were too high because it was optional.

Data collected in the early to mid- 1900s indicated most of the major flood disasters in previous decades were the result of urban expansion in flood zone areas, with little regard for the natural resource.

Traditionally, governments tried to keep water away from the people by constructing dams, levees, etc., but this was inadequate.

NEW STRATEGY: Keep the people away from the water!1953: Tennessee Valley Authority initiates first floodplain regulationsObjectives:Assure the retention of the required floodway areas without raising flood heightsEncourage sound land use in the floodplain, consistent with flood hazard and community land use needs

Initial approach: Zero flood height increase across the entire floodplainNot very practical! Expanded regulation in a way that couldnt address:individual existing usesdevelopment needssocial, economic, and natural benefitsprivate property rights, etc.

In an effort to gain approval and fundingThe Flood Insurance Administration (part of the U.S. Dept. of Housing and Urban Development) negotiated a compromise to satisfy Congress.

Engineered models of a floodway often show an area larger than those depicted on the flood maps due to the no rise strategy.

They achieved a smaller floodway width by squeezing the model to a point that a one foot rise at any point within the channel would occur.

Initial attempts used a zero rise tolerance. 1968: Congress passed the National Flood Insurance Act, creating the National Flood Insurance ProgramProgram would:

Provide flood insurance coverage not generally available in the public marketStimulate local floodplain management to guide future developmentEmphasize less costly nonstructural flood control regulatory measuresReduce Federal disaster costs by shifting burden from general taxpayer to floodplain occupants

1973: Flood Disaster Protection ActLending institutions cannot make, increase, extend, or renew a loan for a building in the floodplain without NFIP flood insurance.

It is the responsibility of the lender to:Determine if the property is in a Special Flood Hazard Area (SFHA)Document the determinationEnsure the insurance is maintained through the life of the loan1994: National Flood Insurance Reform ActIncreased the maximum amount of flood insurance coverageEstablish a grant program for mitigation plans and projectsEnacted stricter penalties on lenders to comply

5 year visit by FEMA to communitiesIncreased Cost of Compliance

Increased cost of compliance provides payment up to $35,000 if a building covered by the NFIPs Standard Flood Insurance Policy becomes substantially or repetitively damaged. Pays for the costs to elevate, floodproof, demolish, or relocate the structure.The NFIP ApproachThe NFIPs approach was based on the rational of selecting a minimum criterion (no more than one foot) to designate a floodway, that would be a compromise between prohibiting encroachments into the floodplain, while permitting economical land use and protection from unreasonable invasion of private and public rights.

Base Flood Elevation (BFE)The height above sea level to which flood water would be expected to rise in a base, or 100 year flood event.

100 year flood1 % annual chance of being equaled or exceeded in a given year100 year flood has a 26% chance of occurring over the life of a 30-year mortgage loanThe Floodway

Floodway: the main channel of a watercourse, including adjacent floodplains necessary to carry the selected flood without increasing flood elevations significantly. No development is permitted in the floodway, unless a licensed engineer can certify through scientific analysis that it will cause no rise to the BFE.The Effects of Fill on the Floodway

OppositionsOfficials from various states felt that no more than one foot rise was not an effective criterion.

Did not take into account:Terrain topographyStream slope and side slopeUpstream watershed developmentHydrology, hydraulics, water velocities, water depthEcological and environmental conditionsEconomic and societal considerationsDegree of acceptance of land use regulationsState and federal statutes and criteriaVegetation loss, impervious surfacesBridges, ice blocks, improper fill

Base Flood ElevationInsurance - used as an accurate numerical value for determining flood risk.

Regulation used as an accurate numerical value for permit approvals.

Design or planning should only be used as an approximate or predicted elevation.NFIP Basic PartsInsuranceMapsRegulationsPermissible RisePermissible rise in flood elevation is based on the assumption that the floodway fringe is completely filled with structures or earth fill to the elevation of the selected flood, or is closed off by a wall so flood waters have to pass down the floodway in the floodway model. In real conditions, the walls do not exist and flood water will impact the floodway fringe on both sides of the floodway.

Special Flood Hazard Areas (SFHA)FEMA-identified high-risk flood area where flood insurance is mandatory for property owners. These areas have special flood, mudflow, or flood-related erosion hazards

Shown on a Flood Hazard Boundary Map or a Flood Insurance Rate Map (FIRM) as being in an A Zone or V Zone (coastal flood zones) A ZonesAE - An area inundated by 100-year flooding, for which BFEs have been determined.A - An area inundated by 100 year flooding, for which no BFEs have been established.AH - An area inundated by 100-year flooding (usually an area of ponding), for which BFEs have been determined; flood depths range from 1 to 3 feet.AO - An area inundated by 100-year flooding (usually sheet flow on sloping terrain), for which average depths have been determined; flood depths range from 1 to 3 feet.A99 - An area inundated by 100-year flooding, for which no BFEs have been determined. This is an area to be protected from the 100-year flood by a Federal flood protection system under construction.AR - An area inundated by flooding, for which BFEs or average depths have been determined.

V ZonesVE - An area inundated by 100-year flooding with velocity hazard (wave action); BFEs have been determined.

V - An area inundated by 100-year flooding with velocity hazard (wave action); no BFEs have been determined.

VO - An area inundated by 100-year flooding with velocity hazard (wave action); no BFEs have been determined.

Coastal Flood Zones

Other Flood ZonesZone B: 500-year flooding; or 100-year flooding with ave. depths of < 1 ft. or with drainages less than 1 sq. mi., or protection from levees

Zone C: outside of 100- and 500-year floodplains

Zone X: outside of the 100- and 500-year floodplains

Flood DeterminationsWhat is a Flood Determination?An official declaration stating whether or not a property lies within a Special Flood Hazard AreaGenerally referred to as a Flood CertificateCertificate that protects investors and borrowers by ensuring flood insurance is purchased for properties in at-risk areasUses Horizontal scaling only, no elevations!

Who uses Flood Determinations?Any federally-regulated lender or government-sponsored enterprise is required to perform a flood zone determination for any mortgage loan they provideBookmark this site!

Plotting a House: Google Earth estimate

Plotting on the Flood MapNames of streets may differNot all streets are shownSome shown incorrectly

1345+/-3245 +/-Challenges with Flood Zone DeterminationsFlood Insurance Rate Maps (FIRMs) arent perfect. Mapping errors can lead to: Incorrect determinationsConflicting dataMaps are outdatedWatershed is constantly changingThe NFIP understands that these errors exist. Any flood determination can be disputed.Falmouth GIS

WestbrookFlood MapArrows show actual water course

Veterans Bridge

DFIRMPaper FIRMFIRMS & DFIRMSPaper vs. Digital Flood MapsThe transition could change flood risk & insurance rates.

New maps will still have old data in most cases, and can still have errors.

Fewer paper copies are being made available to communities, and not all communities have been supplied with digital maps.

The datum, not the data, may have changed. The paper maps are on NGVD 1929 and the new digital maps are on NAVD 1988, which in the Portland area is a 7/10 difference in elevation.Disputing Flood Zone DeterminationsProperty owner most prove map error using technical data

Obtain a NFIP Elevation Certificate through a professional land surveyor, who will submit application to FEMA to request Letter of Determination Review (LODR)Letter of Map Amendment (LOMA)Letter of Map Revision (LOMR)NFIP Elevation CertificateCompleted by land surveyor to get vertical scaling data. Record elevation of lowest floor of a building.

Expiration date on form: March 31, 2012 (still acceptable)

Does NOT waive mandatory flood insurance. Only approved LOMAs and LOMRs can amend the FIRM and remove the requirement.

As-Built Elevation CertificatesFindings of the NFIPs Community Assistance Visits have indicated that many communities do not secure as-built certifications of lowest floor elevation.

Elevation documentation based on plans and drawings is insufficient to assure that the lowest floor of the structure has indeed been built above the BFE.Standard Flood Hazard Determination Form (SFHDF)Lender requests determination from a private company (if not already provided through a mortgage loan inspection)

Note Preparers Information at the bottom. This is NOT a determination made by FEMA.

Private CompanyLetter of Map Amendment Determination Document (Removal)FEMA approved removal of property out of the SFHA

Case Number and LOMA in top right corner

Signed by FEMA Director

Letter of Map Amendment Determination Document (Non-Removal) FEMA denied removal of property out of the SHFA (mandatory flood insurance is required)

Case Number and LOMA-DEN in top right corner

Signed by a FEMA director

FreeboardFreeboard is a factor of safety usually expressed in feet above a flood level for purposes of floodplain management.Compensates for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditionsNot required by NFIP standards, but communities are encouraged to adopt at least a one-foot freeboard to account for the one-foot rise built into the concept of designating a floodway and the encroachment requirements where floodways have not been designated. Results in significantly lower flood insurance rates due to lower flood risk.

Community Responsibilities under the NFIPRequire development permits, review them carefully for each site.Require residential structures to have the lowest floor (including basement) elevated at least to or above the Base Flood Elevation. (One foot ABOVE the BFE for non-residential).But remember, Maine has freeboard, which requires an additional foot. Require manufactured homes to be elevated and anchored.Assure flood carrying capacity of altered or relocated watercourses is maintained.Maintain records of all development permits.Verify and document 1st floor elevations of new or substantially improved structures.

Maintain Higher Regulatory StandardsMaintain adequate records to assure elevations are adequately communicated prior to construction projects.Encourage permits for Other Development such as mining, drilling, filling, grading, paving, etc. in flood hazard areas.Secure As-Built Elevation Certificates of the lowest floor elevation.Floodway encroachments are prohibited unless an engineered no-rise analysis is done.If a watercourse is altered, it is required to notify adjacent communities, the State Coordinating Agency and FEMA.

Understanding Flood ZonesAny Questions?Pre-FIRM & Post-FIRMPre-FIRMPost-FIRMBuilt before detailed flood hazard data and flood elevations were provided to the community and usually before the community enacted comprehensive regulations on floodplain regulation. Can be insured using "subsidized" rates. Designed to help people afford flood insurance even though their buildings were not built with flood protection in mind.New construction and those built after the effective date of the firstFIRM for a community.Insurance rates for Post-FIRM buildings are dependent on the elevation of the lowest floor in relation to the Base Flood Elevation (BFE).Pre-FIRM & Post-FIRM Structures

REMEMBER: one portion of a dwelling could be Pre-Firm and another could be Post-Firm.

Pre- Flood Insurance Rate Map (FIRM) buildings are those built before the effective date of the first Flood Insurance Rate Map (FIRM) for a community. This means they were built before detailed flood hazard data and flood elevations were provided to the community and usually before the community enacted comprehensive regulations on floodplain regulation. Pre-FIRM buildings can be insured using "subsidized" rates. These rates are designed to help people afford flood insurance even though their buildings were not built with flood protection in mind.Build dates can also effect insurance ratesPre-FIRM: built before the effective date of the communitys first FIRMPost-FIRM: built after initial FIRM, OR after 12/31/74, whichever is later

The map says: Flood insurance not available for structures newly built or substantially improved on and after Oct. 1, 1983 in designated coastal barriers.

Insurance ImpactsMapped In Flood risk increasedMore structures in floodplainMandatory purchase of flood insurance

Mapped OutFlood risk reducedRisk not eliminatedLow-cost preferred risk coverage available

Putting it into perspectivePre-FIRM AE Zone(No Grandfather)$2235Post-FIRM +1 AE Zone(No Grandfather)$819Post-FIRM -1AE Zone(No Grandfather)$5623Standard X Zone$1439PRP Premium(PRP Extension)$343Single FamilyOne FloorNo BasementNo Prior Flood LossesGrandfatheringAllows a property owner to:Lock in a previous Flood ZoneLock in a previous Base Flood Elevation Allows premium benefits after:Changes in map zonesChanges to compliance issues